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Creating a Reasonable-Accommodation Ordinance for People with Disabilities

By Fred Nisen, Dara L. Schur, & Tomasine Cole

Many people with disabilities need changes in their housing, whether they own their housing or rent it; such changes require approval by local land-use authorities. People with mobility disabilities may need to install exterior ramps, which might normally violate a zoning setback ordinance or other land-use ordinance in terms of placement or site coverage. People with intellectual or mental health disabilities may need a higher fence than normally allowed on their property to offer more privacy and reduce anxiety. Some people with mobility disabilities and significant medical needs may wish to add a ground-floor bedroom, put in an elevator, or modify an existing room to allow space for equipment or nurses and aides, and such modifications might violate local ordinances. Supported-housing providers may need a variety of permitting or parking changes to allow them to serve people with disabilities in community settings. At Disability Rights California we have been representing many people with problems like these, and we are well aware that local governments are unfamiliar with their obligations to provide reasonable accommodation and modification under the Americans with Disabilities Act (ADA) and the Fair Housing Act.

We were very interested when we learned that Oakland’s planning department was considering a “reasonable accommodation” ordinance to be used in connection with land-use and zoning determinations. The proposed ordinance showed violations of Title II of the ADA, the federal Fair Housing Act, and Section 504 of the Rehabilitation Act of 1973. Through public comments and negotiation, the Bay Area office of Disability Rights California eliminated the violations and made the ordinance one of the most disability-friendly land-use and zoning accommodation ordinances in California.

Disability Rights California is the state’s federally mandated protection and advocacy agency for people with disabilities; it is a statewide legal services organization funded in part by IOLTA (Interest on Lawyers Trust Accounts) to serve low-income people with disabilities. (Disability Rights California did not use any federal funds for this work.) One of our priorities is housing, particularly expanding housing opportunities for individuals with disabilities.

Legal Framework

Title II of the ADA, Section 504, and the federal Fair Housing Act, as well as state laws such as California’s Fair Employment and Housing Act and Unruh Civil Rights Act, require local governments to make reasonable accommodations for people with disabilities in the land-use and zoning areas when necessary to allow them to access housing. A reasonable accommodation may be as simple as changing a setback requirement to allow a ramp to be built or as complex as modifying a variety of provisions to allow a group home or housing with supportive services to be located in a particular neighborhood.

Land use and zoning in California take place in the context of a state statutory scheme that requires local governments to analyze myriad factors when developing their local ordinances. Each locality adopts a general plan that guides development within this statutory framework. Of particular importance to advocates for affordable, accessible housing are the requirements for the “housing element” of this general plan. Among other requirements, the housing-element statute asks localities to (1) assess the housing needs of various groups, including people with disabilities; (2) identify both governmental and nongovernmental constraints in meeting those needs; (3) identify an action plan to remove the constraints and meet the needs; and (4) identify sites for development of affordable housing. The development of the housing element of a general plan involves public participation and comment.

A reasonable accommodation may be as simple as changing a setback requirement to allow a ramp to be built or as complex as modifying a variety of provisions to allow a group home or housing with supportive services to be located in a particular neighborhood.

Housing elements are reviewed by the California Department of Housing and Community Development. Failure to have a department-approved housing element can result in legal sanctions and loss of state funding opportunities. The department has made adoption of land-use reasonable-accommodation ordinances part of its regular review of housing elements.

In a letter dated April 30, 2009, as part of a response to Oakland’s draft housing element, the California Department of Housing and Community Development told the city that “the element should … discuss the City’s policy or procedure for providing reasonable accommodation in zoning and land-use regulations, beyond physical modifications to buildings.” As a result, on January 22, 2014, prior to submitting its 2015–2023 housing element, Oakland’s planning department proposed such a reasonable-accommodation ordinance.

Public Comments and Negotiation

Disability Rights California began by submitting a public comment letter dated April 2, 2014, outlining the legal violations. When we testified at the planning commission’s public hearing about the violations, we met with openness from the commission. The commissioners directed the planning department staff to meet with us to work out a solution. We had a series of meetings with the planning department and the city’s legal staff as we sought mutual solutions to our legal concerns and their practical concerns about how to implement this ordinance while following their normal land-use procedures. We exchanged several redlined versions before agreeing upon a version to submit to the planning commission.

We attended subsequent planning commission and Oakland city council meetings to express support for the revised reasonable-accommodation ordinance and the work of the planning department staff. The Oakland city council adopted the ordinance on July 15, 2014.

Problems with the Proposed Draft

The reasonable-accommodation ordinance, as originally drafted, imposed extra hurdles on people with disabilities. These were the problems we resolved during our negotiations with the planning department.

Processing Fee. First, the original draft of the reasonable-accommodation ordinance charged a fee to process a reasonable-accommodation request. Charging a fee for a reasonable-accommodation request is unlawful under Title II of the ADA and Section 504 of the Rehabilitation Act of 1973 as well as the California Unruh Civil Rights Act. The fee was removed from the ordinance.

Confidentiality Violations. The second problem with the proposed draft was that its public-notice provisions were impermissible, and it had no confidentiality requirements. The draft ordinance required notice to affected neighbors when a decision was made about a person’s reasonable-accommodation request. Although public disclosure is a common provision in most land-use and zoning ordinances, we argued that information obtained from people regarding their disabilities must be kept confidential. This means that the city must not give notice to neighbors or others, must not review or consider the requests in public hearings or forums, and must keep all disability information confidential.

This was the most challenging provision to negotiate since it was contrary to usual land-use and zoning procedures, based as they are on public disclosure and input. However, we explained how even revealing that someone has a disability could subject one to further discrimination and stigma. As a result, the ordinance was substantially modified to (1) keep submitted information confidential, (2) remove public disclosure requirements, and (3) handle the requests in a confidential manner on a separate, but coordinated, track with other related land-use approvals. The planning department also altered the appeals process for the denial of an applicant’s reasonable-accommodation request. Instead of the appeal going before a public body, the appeal of the denial is now decided by the city administrator, further ensuring that the information on the applicant’s disability is kept confidential.

Burdensome Provisions. Third, many requirements imposed by the ordinance, and the draft application form itself, were burdensome and impermissible. Besides such permissible information as that the applicant has a disability and the reasons for the accommodation, the draft form asked for such information as parcel numbers and the impact on adjoining properties. Because this information is unrelated to the accommodation request, probably not known by the applicant, and within the city’s knowledge, we requested that these requirements and questions on the form be deleted; this was done. The city also has a duty to take reasonable-accommodation requests orally and assist applicants who need help with the form. The final ordinance now has a policy requiring planning department staff to assist people with disabilities in completing the request-for-reasonable-accommodation form. The planning department also made the form easier to understand.

Disability Definition. Fourth, because the definition of a “disability” in the proposed ordinance was too narrow, we suggested that the city use the California state-law definition of disability; that definition is broader than the federal one. The planning department changed the ordinance as we requested. This broader state-law definition that is now a part of the ordinance states that an impairment must “limit” (instead of “substantially limit”) a major life activity. This broader definition helps ensure that people living with disabilities are not turned away when they need to request a reasonable accommodation.

Group Homes. The fifth problem lay in the proposed section on group homes. The group-home language was not part of the ordinance itself, but questions on the application form concerning group homes were problematic. The actual term “group home” does not have any general legal significance in California. In fact, a large number of different types of supported-housing and group-living arrangements are found in California. Some are regulated, some not, and many have specific statutory provisions allowing them to be sited in residential neighborhoods. In this case, how the term was being used on the form and in the process was unclear. We recommended that the city delete this section of the form. This group-home language was removed and no longer appears anywhere on the form or in the ordinance.

Factors that Led to the Positive Result

Our negotiation resulted in a strong ordinance. A number of factors contributed to this outcome.

First, a major factor in our success was the commitment by the California Department of Housing and Community Development to ensure that local governments (cities and counties) adopt reasonable-accommodation ordinances. The department has made adoption of land-use reasonable-accommodation ordinances part of its regular review of housing elements. The housing element statutory scheme, the disability components of the scheme, and the department’s staff priority for this particular issue are the result of many years of advocacy and relationship building with the department by disability and legal aid groups.

Second, although the city never said so, we believe that a factor in the outcome was the city’s possible concern that without the ordinance the California Department of Housing and Community Development would not approve Oakland’s new housing element. Disapproval by the department would eliminate the city’s priority for certain state funding and could subject it to litigation that could block new development.

Third, careful legal analysis and time spent crafting our letter and testimony to the planning commission got the city’s attention to begin the dialogue. Our letter and initial testimony took a cooperative and thoughtful tone, not an adversarial one. We could do this in Oakland, which is usually open to progressive ideas. In other localities we might have taken a slightly different tone or submitted more detailed legal analysis.

Our letter and initial testimony took a cooperative and thoughtful tone, not an adversarial one.

Fourth, the city took a respectful and problem-solving approach once the city learned of our concerns and realized that we would be willing to work with it to come up with an ordinance workable for the city and for people with disabilities. Early in our discussions, the city involved senior staff—including planning staff, a city attorney, and disability department staff—used to problem solving. That was very helpful. Some staff members initially had what we perceived as defensive responses to our concerns and might have felt as though we were criticizing a lot of work they had done. We did not take their reaction personally and were able to acknowledge the good parts of their work and move past their defensiveness to a collaborative approach. We were very appreciative of the willingness of all staff members to work with us. They were also worried about meeting certain deadlines in the housing element approval process, so we agreed to work quickly and meet often in a short time frame.

Fifth, we were flexible in responding to the city’s concerns. Land-use and zoning policies and practices vary from locality to locality, and we worked hard to make the ordinance work smoothly with the city’s usual practices. We did not insist on one way of doing things or a standard-form ordinance or demand that the city had to do it the same way as others had done. Instead we took the time to learn from city staff (in person and by reviewing local ordinances) about the unique parts of the city’s system and its concerns in order to solve problems jointly. Flexibility was particularly needed when trying to find the right balance between confidentiality and the city’s usual public land-use practices.

Implications of the Reasonable-Accommodation Ordinance

The reasonable-accommodation ordinance that the Oakland city council adopted helps a large population previously unable to request a reasonable accommodation from the city. We believe that the adopted ordinance fully complies with state and federal fair housing and antidiscrimination laws and is a model for other jurisdictions. The California Department of Housing and Community Development has posted the ordinance on its website as a model for other local governments in California. We are hopeful that other jurisdictions will take a similar approach.

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